Wu Yim Chung v. Lo Wai Ching and Another

DCCJ 4434/2013

[2019] HKDC 806

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4434 OF 2013

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Before: His Honour Judge S. LO, in Court

Dates of Hearing: 8-10 April 2019 and 7 May 2019

Date of Judgment: 17 June 2019

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JUDGMENT

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Introduction

1.This is the trial of adverse possession claim commenced by the plaintiff (“P”) over 6 pieces of land in Sai Kung, 3 pieces of which namely Lot Nos. 333, 339 and 340 in D.D. No. 247 (“D1 Land”) are owned by the 1^st defendant (“D1”) and the remaining 3 namely Lot Nos. 323, 324 and 338 in D.D. 247 (“D2 Land”) are owned by the 2^nd defendant (“D2”) (D1 and D2 be collectively called “Ds” whereas D1 Land and D2 Land be collectively called the “Suit Land”).

P’s case and claim

2.On 13 May 1988, the Suit Land was purchased by P and his brother Wu Yim Kwong Kindwind (“Kindwind Wu”).[1] It is P’s case that P and his family began to occupy and use the Suit Land as open storage for construction materials and vehicles from this time onwards.  Fences and hoardings enclosing the Suit Land were erected by P and his family. P’s family kept the fencing repaired since then, and replaced all of the wire mesh fencing with metal hoardings in around spring 2012.

3.From 1988 to 1998, P’s family gradually acquired numerous lands (at least 27 lots) surrounding the Suit Land.

4.On 21 December 1988, P and Kindwind Wu sold the Suit Land to a company called Everspread Development Ltd.

5.On 2 March 1992, Everspread Development Ltd sold the Suit Land to one Yu King Kwok (余經國).  It is P’s case that his brother-in-law Luk Ping On on behalf of P’s father and his family rented the Suit Land from Everspread Development Ltd and renewed by Yu King Kwok after the sale in 1988 until the lease expired in October 1993. Since then, P has not paid rents to anyone or entered into any new tenancy. No one ever came forward to collect rents. From October 1993 onwards, P and his family have been in adverse possession of the Suit Land until to date[2].

6.On 8 April 2003, Madam Kwong Shook Ling (“Madam Kwong”) succeeded the Suit Land as the executrix of Yu King Kwok.

7.In about 2004, Madam Kwong commenced the following 4 sets of actions in the High Court under Order 113 for possession against “The Occupants of Lot Nos. 323, 338, 339 and 340 in Demarcation District No. 247, Sai Kung New Territories” respectively:

(i)   HCMP 151/2004 regarding Lot 323;

(ii)   HCMP 148/2004 regarding Lot 338;

(iii)   HCMP 146/2004 regarding Lot 339;

(iv)   HCMP 144/2004 regarding Lot 340 (collectively called “HCMP Actions”).

8.Lots 339 and 340 are 2 pieces of lands in D1 Land whilst Lots 323 and 338 are in D2 Land.  On or about 30 March 2004, Madam Kwong obtained default judgments in relation to these 4 lots of the Suit Land in the Court of First Instance (“Default Judgments”), which were never executed.   P claimed that after March 2016 ie 12 years from the date of the Default Judgments, the same cannot be enforced by virtue of section 4(4) of the Limitation Ordinance. 

9.On 17 September 2013, D1 and D2 acquired the Suit Land from Madam Kwong.  As Ds alleged that P entered and trespassed the Suit Land, P commenced the present action in the District Court for a declaration of possessory title on 15 November 2013.

Ds’ case and counterclaim

10.Before becoming the owners, Ds had conducted site inspections more than 10 times from October 2012 to September 2013, and there was no sign of inhabitation, no containers or no structures erected and no hoardings on or enclosing the Suit Land.

11.In October 2013, after completion, Ds found out that P without consent of Ds trespassed the Suit Land, including erected structures, enclosed with hoardings, placed containers and parked vehicles.  Ds plead that P should make the claim of adverse possession by way of joining himself as intervener or 2^nd defendant in the HCMP Actions and apply to set aside the Default Judgments.

12.Ds also plead that P’s continuous and undisturbed possession was less than 12 years.

13.Ds counterclaims for (i) injunctions; (ii) delivery of vacant possession of the Suit Land; (iii) mesne profits at $65,000 per month till actual delivery up of the Suit Land; (iv) damages for Ds’ loss of enjoyment to be assessed.

General principles on adverse possession

14.A recent summary of the relevant law by the Court of Appeal in Tsang Foo (also known as FU) Keung & Anor v Chu Jim Mi Jimmy & Ors, CACV 178/2015 (28 October 2016), at para 22, per Harris J is set out as follows:

(i)   In order to succeed in claiming possessory title by adverse possession, the claimant must show that he has both the factual possession during the relevant period and the requisite intention to possess.

(ii)   The requisite factual possession is a sufficient degree of exclusive physical control, and what is sufficient depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(iii)   The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(iv)   The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention by compelling evidence.  It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(v)   Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

15.The adverse possessor needs not personally be in physical possession of the land in question.  He can acquire an adverse possessory title to the land by leasing out the land and through occupation by his licensee or his tenant, which is an exercise of an act of ownership by the possessor and inconsistent with the title of the paper owner: Cheung Yat Fuk v Tang Tak Hong & Ors (2004) 7 HKCFAR 70 at pp 77D-78E, per Bokhary PJ, paras 16-20.  

16.The burden of proof on the adverse possessor is a heavy one.  Slade J said in Powell v McFarlane & Anor (1979) 38 P&CR 452, p472:

“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the court will treat him as not having had the requisite animuns possidendi and consequently as not having dispossessed the owner.” (emphasis added)

17.The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.  Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the court should approach them with some scepticism. The courts would scrutinise the circumstances in which they were made and would give them such weight if any as they may deserve.  (Wong Tak Yue v Kung Kwok Wai & Anor (No 2), (1997-98) 1 HKCFAR 55, at pg 69AB).

Factual and expert evidence

18.P is the only factual witness for his case, who has filed 3 witness statements in total whereas D1 and D2 also filed their respective witness statements.  P, D1 and D2 all gave oral evidence for their respective cases at the trial.

19.The surveyor for P, Mr Joseph Wong Yiu Cho (“P’s expert”) and the surveyor for Ds, Mr Lau Chi Kwong (“Ds’ expert”), apart from their own expert reports, have prepared a joint statement setting out their findings following a joint experts meeting on 28 June 2017 (“Joint Report”).  As stated in the Joint Report, there is no issue that the 2 experts are not in agreement. 

20.The area now occupied by P has been defined by the 2 experts as the “Occupied Area” in the Joint Report[3]. The Occupied Area is slightly larger than the Suit Land.  The Suit Land took up around 93% of the Occupied Area according to P’s expert.  The map in the Joint Report shows (a) D1 Land (shaded in yellow), (b) D2 Land (shaded in pink); and (c) the Occupied Area (outlined in blue).

21.All the expert reports and the Joint Report have mistakenly labelled Lot Nos. 323, 324 and 338 in D.D. 247 as “D1 Land” and Lot Nos. 333, 339 and 340 in D.D.247 as “D2 Land”.  But in fact the former lots are owned by D2 and the latter lots are owned by D1, which are not in dispute by the parties.

22.A few general observations and common findings by the experts in the Joint Report are set out as follows:

(i)   Based on the aerial photos:

(a)   From 1989 to 1993, the Suit Land was used for parking vehicles, placing construction materials and containers.

(b)   From 1994 to 1995, all the cars and construction materials were removed.  A gate[4] was barely seen bear the north end of D1 Land (“Northern Gate”).

(c)   From 1996 to 2003, there appeared to be a driveway through the Occupied Area from the south to the Northern Gate. A number of cars including a white bus were seen.

(d)   In 2004, the entrance of the driveway at the south portion was blocked by unidentified objects.

(e)   From 2005 to 2006, grasses started to grow and were over-grown.

(f)   From 2007 to 2009, most of the grasses were cleared.

(g)   In 2010, some hoardings were erected along the common boundary with D2 Land.

(h)   From 2011 to 2013, grasses started to grow and then cleared again.

(i)   In 2014, more materials were placed inside.

(ii)   Based on the survey sheets

(a)   Since around April 1992, fences and Northern Gate were seen on the Suit Land.

(b)   Since around February 2009, fences running across the southern portion of Lot Nos. 323 and 338 in D.D. 247 were removed (such that they became connected to the adjacent Lot Nos. 339 and 340 which continued to have fences in their southern portion with an entrance connecting to the access road).  The Suit Land was occupied by one open storage.

23.Both experts also gave oral evidence at the trial.

P’s allegation of installing metal chain

24.It is not disputed that the survey sheets prepared in April 1992 up to August 2016 all show that the Suit Land was not completely surrounded by fences or hoardings erected by P as there is an opening of 30 to 40 feet in width on the southern side of the Suit Land (“the Southern Entrance”) with no gate or barrier.

25.The Southern Entrance can also be seen clearly in the various aerial photos from 1995 to 2013 as attached to P’s expert report dated 24 February 2017 and Ds’ expert report dated 12 April 2017.

26.P gave evidence in court that he has installed a metal chain of 30 to 40 feet long at the Southern Entrance.  He said that the metal chain was usually placed on the ground to allow egress and ingress of large construction vehicles and trucks.  However, he had not mentioned when such metal chain was installed.

27.It is noteworthy that the allegation of installing or using a metal chain in the Southern Entrance was never raised in all the 3 witness statements of P and that no photograph is produced to prove the existence of the metal chain at the Southern Entrance. There is no explanation given by P in court as to why he failed to state the installation of metal chain in his witness statements but suddenly mentioned the same in court. In the 2^nd supplemental witness statement of P dated 1 November 2017, he produced altogether 19 photos allegedly taken by Kindwind Wu in October 2017 showing different parts of the Suit Land.  Nonetheless, the metal chain at the Southern Entrance cannot be seen in these photos.  There is no reason given by P as to why some photos showing the existence of the metal chain cannot be taken and produced.

28.In my view, the additional evidence concerning the metal chain is self-serving and should be approached with skepticism and caution.

29.Both experts agreed in court that the metal chain would not have been logged onto the survey sheets and that there is “no specific symbols” used by the Lands Department to reflect a metal chain of such nature in the survey sheets.  However, according to the P’s expert report dated 24 February 2017, his expert personally conducted a field survey of the Suit Land on 21 December 2016.  But there is no mention of metal chain at the Southern Entrance in this report.  P’s expert only stated in para 11 of his report that:

“….. The southern boundary was also fenced as shown in Survey Sheet since year 1992 except a small opening next to the temporary structure.  This small opening acted as an entrance connecting the access road to the driveway through the southern portion of “the Occupied Area”. The driveway and the entrance were kept cleared off from the vegetation for most of the time throughout the study period.”

30.In my view, if P’s expert did observe a metal chain at the Southern Entrance at the time of field survey, he should state the same in his report. Furthermore, Ds’ expert said in court if there was a chain observed from the aerial photos, it will be indicated in the Joint Report.  It is clear in the Joint Report that no expert mentioned any chain at the Southern Entrance.  In other words, both experts cannot see from the aerial photos that any chain could be observed.  Hence, P’s evidence in this regard is inconsistent with that of both experts.

31.If P did mention the metal chain in his witness statements, the 2 experts will obviously be requested to express their opinion in the Joint Report as to whether they can observe the same from the aerial photos and, if yes, when the metal chain is likely to be installed.   In the circumstances, I refuse to accept the bare assertion of P that he has installed a metal chain at the Southern Entrance since 1994 or at any material times thereafter.

Whether the “road/track” is a dead-end and only leads to P’s other lots

32.Mr Leung for P indeed accepted that there is no difficulty at all for P to complete the fencing of the Southern Entrance or to install another gate there, similar to the Northern Gate or the guard house with traffic beam at the north part of the Suit Land but submitted that in the case of open land, absolute physical control is normally impracticable and that it is generally impossible to secure every part of a boundary so as to prevent intrusion. In Powell v McFarlane & Anor, Slade J said:

“…. Enclosure is the strongest possible evidence of adverse possession”, though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too the locking or blocking of the only means of access ….”

33.Mr Leung further relied on Chan San v Hans Li & Ors., HCA 840/2012 [2019] HKCFI 714 at paras 39-42, per Wilson Chan J.:

“39. … Given the nature of Area B, the land had realistically been subject to only limited activity of the squatter. Nonetheless, enclosure and total exclusion are not pre-requisites to adverse possession. Rather, what is important is how someone in the position of an occupying owner would ordinarily have used the land in question. The nature of Area B had changed from rural land to predominantly a driveway leading to Lot 1213 and Area A. I agree with the plaintiff that it is contrary to the nature of a driveway or road to be fenced off. More so for a relatively remote area in the New Territories for a road which just leads to Lot 1213 and the Land. To establish adverse possession, the plaintiff can simply rely on the constructed road from Tai Shu Ha Road West leading to Area A. As noted above, this road only leads to Lot 1213 and Area A. It did not serve any other land, and its enjoyment was exclusive to the plaintiff.

40. In the context of essentially a private driveway leading from Tai Shu Ha Road West to Area A, the question is what would one expect the plaintiff to have done to exclude the world at large? What is evident and uncontroversial is that the plaintiff had singlehandedly built the road, and slowly improved it: from a dirt road, to a paved road and extended it into Lot 1213 and Area A. Eventually he even connected the road to the footpath which had existed all along. In Lot 1213 and Area A, there is photographic evidence of containers and other large items being stored there.

…

42. In the circumstances, even if the plaintiff had little physical control (for example, no barriers to prevent others from entering the road), I agree with the plaintiff’s submission that as a matter of law, there is still factual possession and the requisite intention on the part of the plaintiff regarding Area B.” (emphasis added)

34.Mr Leung submitted that similar to the facts in Chan San’s case, although the Suit Land has an opening in the Southern Entrance at Lot 340, connecting the Suit Land to a “track” subsequently labelled as “road” in the survey sheets[5], this “road/track” is a dead-end and “only leads to” the other lots of P and “did not serve any other land, and its enjoyment was exclusive to P”.

35.On the other hand, Mr Lau for Ds submitted that the “road” is not exactly leading to a dead end since the land immediately next to the Southern Entrance is not owned by P and the “road” was used by other villagers.

36.In my view, whether this “road/track” is a dead-end and only leads to the other lots of P and does not serve any other land is a question of facts, which the court may require the assistance of the experts as they can inspect the Suit Land personally or look at the relevant aerial photos and survey sheets near to the Suit Land. Nonetheless, the 2 experts never express any opinion on this question.  P himself never said so in his own evidence or witness statements.  On the other hand, Ds did give evidence that there was parking lots immediately next to the Southern Entrance.  That is why Mr Lau submitted, which I accept, that the “road” was in fact used by other villagers.  In any event, looking at the various survey sheets prepared from April 1992 to August 2016 and the aerial photos from December 1994 to January 2015[6], I am able to reject Mr Leung’s submission in this regard without the assistance of the experts.   Further, as the burden of proof must be on P, I find on a balance of probabilities that this “road/track” is not a dead-end and do serve other lands, and that its enjoyment was not exclusive to P.

37.In the circumstances, Chan San’s case is distinguished.  There is another reason why this case can be further distinguished, namelythe plaintiff therein had singlehandedly built the road, and slowly improved it from a dirt road to a paved road and extended it into the land in question.  However, there is no evidence that the track in question was paved to a road by P in the present case.

My findings regarding P’s erection of the “Shing Fung Studio” signboard and various boards showing “no unauthorized entry”

38.Mr Leung also submitted that P further signified to the world at large that the Suit Land belonged to P’s family by the erection of the “Shing Fung Studio” signboard and various boards showing “no unauthorized entry”.  According to the photo produced taken in 2017 (about 4 years after the commencement of this action)[7], the location of the “Shing Fung Studio” signboard is near to the north of Lot 335[8], which is quite far away from the Southern Entrance.  I am of the view that this signboard is irrelevant since anyone who intends to enter into the Suit Land via the Southern Entrance would not and could not have any notice of this signboard.  Further, P fails to show when the “Shing Fung Studio” signboard was erected.  Taking his evidence on its face, it was only erected sometime in 2017, which is again not relevant.

39.As to the allegation of erection of various boards showing “no unauthorized entry”, it is never mentioned in all the P’s witness statements but is simply the sudden and bare assertion of P in court without producing any photos in support.  This additional evidence is self-serving and should similarly be approached with skepticism and caution.

40.P indeed failed not only to tell what the exact content in these “various boards showing no unauthorized entry” is but also to identify the exact locations of these boards.  If their locations are far away from the Southern Entrance, they have no relevancy.  As a result, I have to reject this evidence.

41.Based on my findings above, I am of the view that P has not done his best to exclude the world at large, including the owner, from the Suit Land so far as is reasonably practicable, in particular there is an opening in the Suit Land namely the Southern Entrance without any metal chain, any kind of barrier or warning signboard so that any cars driven by outsiders including the owner can freely access to the Suit Land at any time.

Other findings

42.For the sake of completeness, I shall make the other necessary findings which are in dispute.

43.Before 1994, wire mesh fence had been erected by workers of P’s father and the family on the Suit Land when P and Kindwind Wu were still owners of the Suit Land at that time or at least they were occupier under the renewed tenancy.  In my view, the building of the fence cannot be used as evidence to support P’s alleged adverse possession commencing from 1994. 

44.From 1996 to 2003, there appeared to be a driveway through the Occupied Area from the south to the Northern Gate. The experts said that the driveway was the result of frequent passage by vehicles that it is not a driveway built by P.  In any event, there is no evidence from P that they built the driveway.  Besides, a number of cars including a white bus found in the Suit Land were believed to be disposed vehicles as they scattered inside and were not parked properly.  However, P never said that these disposed vehicles were owned by P or his related companies. If they were owned by someone else, P should give further explanation as to why they were allowed by P to be stored in the Suit Land.  In my view, there should be no difficulty for P to produce at least some evidence concerning the ownership of these vehicles and showing the fact that they are really disposed, bearing in mind that P is required to give clear and affirmative evidence to prove the requisite intention to possess and to exclude the world at large. Again, the fact that no evidence or explanation is given by P in this regard should similarly be approached with skepticism and caution.

45.Both of the P’s expert report[9] and the Joint Report[10] recorded that in 2004, the Southern Entrance was wholly blocked by some unidentified huge objects, look like containers.  There is no evidence from P that it was him to block the entrance.  In fact, P gave no explanation at all in all his witness statements as to why it was suddenly blocked.  Logically, I cannot accept that there was any good reason for P to block the Southern Entrance as P said that he installed the metal chain which was usually placed on the ground to allow egress and ingress of large construction vehicles and trucks in or out of the Suit Land.  To the contrary, I accept the submission of Mr Lau for Ds that the blockage was highly likely be carried out by Madam Kwong as HCMP Actions were commenced in 2004 to recover the Suit Land.  Hence, I have no doubt to find that the continuity of P’s possession has been broken, even if P started to possess the Suit Land in 1993 or 1994.

46.On the other hand, I accept D2’s evidence[11] that he and D1 had inspected the Suit Land during the period from October 2012 to September 2013 before purchase from Madam Kwong and were free to enter into and leave the Suit Land without any interference by P or his representatives.  It is totally reasonable in all circumstances for a potential purchaser to inspect the land first before making the decision to buy.  Obviously, they could easily enter into and leave the Suit Land via the Southern Entrance. 

47.As to the photos produced by D1 in her witness statement dated 27 June 2017[12], I further accept that most of them were taken inside the Suit Land whether or not taken in October 2013 by D1’s photographer as alleged by D1.  In other words, this photographer was also free to enter into and leave the Suit land without any interference by P or his representatives; otherwise he/she should be stopped from taking photos inside.

48.P had also said in his oral evidence that his family had since the expiry of the tenancy with Yu King Kwok incurred substantial time and costs in improving the Suit Land as well as from 1988 to 1998 acquired many adjacent lots to the extent that the Suit Land had been circled etc.  Nonetheless, he simply failed to explain why he and Kindwind Wu had to sell the Suit Land in December 1988.  His oral evidence must be considered with skepticism.

Private Surveyor Report

49.It is not disputed that a private land surveyor called Kwong Che Sing carried out surveying works at the Suit Land and prepared a report in March 2012 (“Private Surveyor Report”) before the commencement of this action in November 2013 and that the Private Surveyor Report was attached to both P’s expert report[13] dated 24 February 2017 and Ds’ expert report[14] dated 12 April 2017.  P’s expert agreed that the private surveyor’s work in March 2012 was not carried out for the government.  There is no evidence from P that this private surveyor was instructed by P.  However, Mr Leung for P submitted that this court cannot simply exclude the possibility that it was P who instructed this private surveyor.  In my view, if that is the case, P’s expert shall directly answer by saying that it was P who instructed this private surveyor.  Alternatively, P’s expert could explain in his report as to how he obtained the Private Surveyor Report.  In fact, P already denied that he intended to purchase the Suit Land, so the private surveyor should not be acting for P logically.  Thus, I find on a balance of probability that the survey works were naturally carried out for either the then landowner Madam Kwong or someone who must be permitted by Madam Kwong. 

50.P’s expert agreed that the surveying staff did go into the Suit Land to carry out the survey by planting nails (nail 1 to nail 4), planting the iron spike at location IS5, and set up a tripod at location IS5 to carry out the survey inside the Suit Land. There is no evidence from P that he or his representatives had ever tried to exclude the surveyor staff from the Suit Land.  In my view, this slightest act done by or on behalf of Madam Kwong found to negative discontinuance of P’s possession.

51.In Kwong Shook Ling v The Occupants of Lot No. 841 in Survey District No. 3, Sai Kung, New Territories & Anor, unreported, HCMP 2859/2003, B Chu J said:

“110.   Notwithstanding that Yu did not put up any notice on Lot 841, if he had indeed been dispossessed prior to the 1985 Setting Out Survey, in my view that by requesting the 1985 Setting Out Survey and the 1985 Setting Out Report, Yu exerted ownership and/or had made an effective entry onto Lot 841.  As said by Slade J in Powell, cited earlier in this judgment, that in his judgment the slightest acts done by or on behalf of an owner with the right to possession will be found to negative discontinuance of possession.

111.   In any event, the fact that the Survey Officer and Ng’s representative could enter Lot 841 to carry out the 1985 Setting Out Survey during a period between 23 January 1985 and 13 February 1985 would in any event indicate that D2 was not in exclusive possession of the lot. 

112.   To conclude, having considered all the evidence, I find there was no sufficient evidence that D2 was in physical occupation or possession of any part Lot 841 during the period after the 1983 Fire and the 1985 Setting Out Survey.  It is thus my finding that even if D2 was in exclusive occupation of Lot 841 in 1982 prior to the 1983 Fire, such occupation had discontinued after the 1983 Fire until sometime after the 1985 Setting Out Survey.” (emphasis added)

52.Having said that, I am well aware of the P’s adverse possession alleging from 1994 and if he can prove continuous possession up to 2006, his claim would be succeeded.  Hence, the Private Surveyor Report which was prepared in March 2012 and the photos taken by D1’s photographer in October 2013 may not be relevant.

Conclusion on P’s adverse possession claim

53.As said by Wilson Chan J in Chan San’s case, the determination of the issue of adverse possession is a question of fact.  In my view, based on my findings above and even ignoring the Private Surveyor Report and D1’s photos, I am not satisfied that P has continuously in possession of the Suit Land for more than 12 years and that he has discharged his heavy burden of proof of the requisite intention to exclude the world at large, including the owner, from the Suit Land.  All P’s claim must be dismissed entirely.

Other legal issue

54.Regarding the legal issue of the effect of the Default Judgments on P’s adverse possession claim or the issue whether P shall apply to set aside the Default Judgments rather than proceeding with this action, I consider that they become academic now and are unnecessary for me to determine.

Ds’ claim for mesne profits

55.Mr Leung for P accepted that it is well-established that mesne profits may be awarded when there was trespass to land.  However, in the situation where a party who fails to establish a claim in adverse possession and therefore liable for mesne profits or damages for trespass to land, expert evidence in the form of valuation report should be adduced in order to establish the market value of the land in dispute: see Kwong Shook Ling’s case paras 175-176, per B Chu J.

56.In the present case, no such expert evidence on “quantum” was made available by Ds at trial. In fact, as confirmed by the order of Master SP Yip dated 19 March 2018, by consent of the parties, it was agreed that there will be no expert evidence on “quantum issues” at the trial.  I cannot understand why Ds would agree not to adduce any expert evidence on quantum as they always have the burden of proof of their counterclaim.  Ds even did not ask P to produce the tenancy agreement with Yu King Kwok showing at least the rent payable in 1992.

57.D2 barely said in para 15 of his witness statement[15] that the monthly rental for the Suit Land (around 30,000 sq.ft.) is $65,000 at about $2.2 to $2.5/sq ft. without any documentary proof.  Mr Lau for Ds submitted that Ds claimed damages for over $10,000,000 but restricted to $1,000,000.  I find that the alleged market rental value is mere speculation, unsubstantiated and not commensurate with commercial sense given that Ds purchased the Suit Land in the total sum of $3,554,496 (i.e. $1,777,248 x 2) only.  In the circumstances, in the absence of expert evidence on quantum, I award nominal mesne profits only for $1: see 黃景廉v 牡丹大廈業主立案法團, DCCJ 2313/2009, at paras 65-67, 71.

Ds’ other claims for injunctions etc

58.Apart from mesne profits, Ds also counterclaim the following:

(i)   An injunction requiring P forthwith to demolish all the structures and hoardings on or enclosing the Suit Land and to remove all containers and vehicles on the Suit Land;

(ii)   An injunction requiring P to reinstate the Suit Land at his own costs;

(iii)   P do deliver vacant possession of the Suit Land to Ds;

(iv)   Damages for Ds’ loss of enjoyment of the Suit Land from 17 September 2013 to the actual date of vacant possession to be assessed;

(v)   A declaration that P is not entitled to enter or use the Suit Land with or without vehicle;

(vi)   An injunction restraining P whether by himself his servant or agents or otherwise howsoever from entering or using the Suit Land or from driving or parking any motor vehicles upon it.

59.I regret to say that Mr Lau for Ds did not make any submission in either his opening or his closing to support the above Ds’ counterclaims (except mesne profits).  Neither did Mr Leung for P.

60.D2 stated in para 12 of his witness statement[16] that on 6 November 2013, Ds instructed a law firm to issue a letter accusing Pepmore Company Limited (a company controlled by or related to P) of trespass and demanding vacation from the Suit Land and demolition of all structures therein.

61.For whether an injunction to restrain trespass should be granted, the relevant principles are summarised by Thomas Au J (as he then was) in Billion Star Development Ltd v Wong Tak Chuen[17] and outlined as follows:

(i)   A landowner is prima facie entitled to bring a suit for trespass to claim damages or an injunction or both.

(ii)   A permanent injunction will be prima facie granted and will be denied only if special circumstances exist (which may include circumstances that damages are an adequate remedy for the wrong, in that where the expected injury to land is small and the grant of an injunction would cause disproportionate hardship to the defendant).

(iii)   However, damages suffered is not a prerequisite to the grant of an injunction in such a case, nor is the triviality of the interference alone sufficient reason to justify a departure from the general rule of granting injunctions.  In a case concerning trespass to land (in particular for threats of trespass and acts of trespass in the future), the court is concerned with the protection of a property right, which, if not protected by an adequate remedy, becomes diminished.

62.For the injunction to demolish the fencing and hoardings etc on the Suit Land, since the Occupied Area is slightly larger than the Suit Land which is about 93% of the Occupied Area, I am not sure if all these fencing and hoardings are built on the Suit Land, which may be situate on the other lands.  I consider that so long as they are on the Suit Land instead of on the other lands, P is obliged to demolish them and the injunction for demolition shall therefore be granted.

63.As to the injunction to reinstate the Suit Land, since I am not satisfied that Ds had given any evidence as to the original condition of the Suit Land which I guess a bare land full of grass grown and P should have difficulty to reinstate, I refuse such injunction.

64.In the circumstances, save as aforesaid, I am of the view that there is no special reason not to grant the remaining injunctions, order for possession and declaration as sought by Ds.

65.I am also not satisfied that Ds had given any evidence as to the damages for loss of enjoyment, not to say legal submission by Mr Lau for Ds and Mr Leung for P. Hence, no order be made for such claim as the burden to prove damages must be on Ds.

Conclusion

66.I now dismiss all P’s claims and make the orders in terms as per para 58 (i), (iii), (v) and (vi) of this judgment together with nominal damages of $1 in favour of Ds.

67.Regarding the question of costs, as Ds fail in their counterclaim for mesne profits (except nominal damages of $1)and injunction to reinstate etc, I exercise my discretion and make an order nisi that P shall bear 90% costs of the action with all costs reserved, if any, with certificate for counsel to be taxed if not agreed.  Such order nisi will become absolute unless any of the parties apply to vary by summons within 14 days.

68.Last but not least, I must take this opportunity to thank counsel for their helpful assistance to me (except regarding Ds’ other counterclaim than mesne profits).

Mr Adrian Leung, instructed by Wong, Hui & Co, for the plaintiff

Mr Roy Lau, instructed by Lam, Lee & Lai, for the 1^st and 2^nd defendants